What to Make of the Roberts Court After This Term?
Not every Supreme Court term is created equal, and the one that just concluded, despite a caseload shortened by the pandemic, is arguably the most momentous since President Trump’s inauguration.
The label “Roberts Court” is particularly appropriate to describe this term since Chief Justice John Roberts found himself in the majority 97% of the time. It has been 70 years since a chief justice has been in the majority that often. He is often called a judicial minimalist. That is true much of the time, but several egregious decisions this term exacerbated some of the court’s worst mistakes in recent times.
Start with the court’s latest foray into abortion, June Medical Services LLC v. Russo, which presented the spectacle of the court imposing a 2016 precedent that five justices believed was wrongly decided to strike down a Louisiana law requiring doctors who perform abortions to have admitting privileges at a local hospital. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh called for the overruling of the precedent, Whole Woman’s Health v. Hellerstedt, which had itself altered precedent to strike down a similar Texas law.
The four justices in the liberal bloc were fine with the court playing the nation’s de facto medical board on abortion matters. Although he had dissented in Hellerstedt, Roberts provided the fifth vote in a separate concurrence. He explained that stare decisis left him no choice but to follow a precedent he continued to disagree with—and then narrowed even that by rejecting its cost-benefit standard. No justice believes that all erroneous decisions must be adhered to, and Roberts previously did not hesitate to overturn much older precedents than this one. This was an arbitrary application of stare decisis to the most arbitrary area of modern Supreme Court jurisprudence.
Perhaps no decision this term displayed judicial maximalism more than Bostock v. Clayton County, where a 6-3 court rewrote Title VII of the Civil Rights Act of 1964 to equate sexual orientation and transgender status with “sex.” Joined by Roberts and the liberal bloc, Gorsuch wrote an opinion for the court that brazenly conflated textualism with a tortured literalism that threatened Title VII’s very objectives — and additionally upended years of congressional deliberation. The opinion suggested that its interpretation, which waited over 50 years for a single appellate judge to endorse it, was “unambiguous.” Note how even many outcome-oriented legal commentators applaud the court’s decision without maintaining that sexual orientation is the same thing as sex.
In Department of Homeland Security v. Regents of the University of California, Roberts again joined the liberal bloc to stymie the Trump administration’s rollback of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program as arbitrary and capricious. This was the second time in as many years that Roberts vindicated an anti-Trump litigation strategy to remake the Administrative Procedure Act (APA), the statute that sets the standard of review for federal agency action, into a procedural wrench that could scuttle implementation of a straightforward regulation. In this case, the regulation simply rescinded a program that had itself exceeded legal authority; so Roberts had concluded about DACA’s nearly identical companion program when it was challenged before an equally divided court in 2016. But as in the abortion case, that did not stop him from taking a different position four years later.
That was the bad news on the administrative law front, but there was also an encouraging development for the separation of powers. In Seila Law LLC v. Consumer Financial Protection Bureau, Roberts joined the four conservatives to hold unconstitutional the structure of the Consumer Financial Protection Bureau, which operated under a single director who was removable by the president only for cause. The case might seem arcane, but it vindicates a principle of democratic accountability that the Constitution requires to avoid tyranny.
Perhaps the highlight of the term was the trifecta of decisions, all with the court’s Republican appointees voting together and twice with a supermajority, that made this a milestone year for religious freedom. Espinoza v. Montana Dept. of Revenue struck down as a violation of the Free Exercise Clause the Montana Blaine Amendment’s denial of tuition assistance to parents who send their children to religious schools solely because of their religious status. In Our Lady of Guadalupe School v. Morrissey-Berru, a 7-2 court applied the ministerial exception, which derives from the First Amendment, to bar suits against Catholic schools by teachers whose jobs included teaching religion. In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the court, again by a 7-2 vote, upheld the Trump administration’s conscience protection rule exempting an order of nuns from Obamacare’s contraceptive mandate.
Both of the closely watched cases involving politically motivated subpoenas targeting President Trump’s personal financial records were sent back to the lower courts. In Trump v. Mazars USA, LLP, the 7-2 majority opinion dealt House Democrats, whose committees had issued subpoenas, a historic defeat. The lower courts were required to assess a non-exhaustive list of considerations, including a probe of the committees’ legislative purpose, before the subpoenas could be enforced, which portends doom for the House Democrats’ attempted fishing expedition. In Trump v. Vance, which involved the Manhattan district attorney’s grand jury subpoena served on Trump’s accounting firm, the five-justice majority opinion said that, this time, the president would have to make any challenge to the subpoena. What form a challenge might take was articulated in very general terms that practically beg for future clarification. Kavanaugh, joined by Gorsuch, separately concurred in the judgment, but argued for requiring the prosecutor to establish a “demonstrated, specific need” for the president’s records. In both subpoena cases, Thomas and Alito argued in dissent for even stricter standards, but the ultimate outcome of at least Mazars seems set either way. All nine justices agreed the president enjoyed no absolute immunity.
The justices were unanimous in Chiafalo v. Washington that a state may enforce electors’ pledges to support their party’s nominee and the state voters’ choice in the Electoral College. But on the whole, the rate of unanimous judgments this term (37%) was lower than any other in over a decade, even while the rate of 5-4 decisions (21%) was typical of the same stretch of time.
What to make of the Roberts Court after this term? The chief justice is widely known as an institutionalist whose priority is the perceived legitimacy of the court. While it is natural to desire respect, institutional ego should never overtake the justices’ paramount duty to say what the law is. This term’s starkest departures from that principle undermined the people’s ability to shape their future through their elected representatives. For all of the court’s recent successes, it still has some way to go before a majority makes paramount not a court-centered Constitution but a Constitution-centered Constitution.
Frank J. Scaturro is Vice-President and Senior Counsel of the Judicial Crisis Network.